Sunday, January 29, 2012

A blind hog finds an acorn

Years ago I learned an old Nebraska saying from a friend: Even a blind hog finds an acorn. And so it is with Rick Perry, who euthanized his campaign right before the South Carolina campaign. As much as it pains me to admit it, Perry's website promotes a reasonable idea whose provenance is described in a New Yorker "Talk of the Town" column by Hendrik Herzberg (January 30th). While the idea is hardly original, Perry advocates

...a Constitutional Amendment creating 18-year terms staggered every 2 years, so that each of the nine justices would be replaced in order of seniority every other year. This would be a prospective proposal, and would be applied to future judges only. Doing this would move the court closer to the people by ensuring that every President would have the opportunity to replace two justices per term, and that no court could stretch its ideology over multiple generations. Further, this reform would maintain judicial independence, but instill regularity to the nominations process, discourage Justices from choosing a retirement date based on politics, and will stop the ever-increasing tenure of Justices. A similar model could also be applied to appellate and district courts.

Perry's website offers two charts that make the following claims:

The average tenure of Supreme Court justices from 1789 to 1970 was about 15 years, compared to 26 years from 1970 to the present.

From 1789 to 1970, there was vacancy on the Supreme Court about every 2 years. Since 1970, vacancies have occurred every 3 years.

Perry (or more likely his ghostwriters) notes that longer life expectancy over that period likely affected the data, but it also seems clear to me that the increased polarization of the Court has encouraged some superannuated judges to linger in office in the hope that they could be replaced by a politically sympatico administration.

A footnote on Perry's site attributes the original concept to Steven G. Calabresi and James Lindgren, Northwestern University School of Law Public Law and Legal Theory Series, "Term Limits for the Supreme Court: Life Tenure Reconsidered," page 771.

Herzberg adds that the idea "tiptoed into wider view in 2002, via a Washington Post op-ed piece by two prominent law professors of opposite ideological and political leanings: Yale’s Akhil Reed Amar, a Democrat, a former clerk for Stephen Breyer, and a stalwart of the liberal American Constitution Society; and Northwestern’s Steven G. Calabresi, a Republican, a former clerk for Antonin Scalia, and a co-founder of the conservative Federalist Society. In 2006, Calabresi and his colleague James Lindgren fleshed the idea out in a long article in the Harvard Journal of Law & Public Policy."

Under the Amar/Calabresi proposal, each president would make an appointment once every two years for a maximum of four over a two-term administration.

Newt Gingrich, predictably, goes much farther in his proposals to alter the way the Court functions. As stated in the London Guardian:

The Republican contender told a forum of anti-abortion activists ahead of South Carolina's primary election that as president he would ignore supreme court rulings he regards as legally flawed. He implied that would also extend to the 1973 decision, Roe vs Wade, legalising abortion.

"If the court makes a fundamentally wrong decision, the president can in fact ignore it," said Gingrich to cheers.

The Republican contender, who has made no secret of his disdain for the judiciary, said that as president he would expect to have repeated showdowns with the supreme court. He said the court would lose because it is the least powerful and least accountable arm of government.

While it's true that the Supreme Court has no ability to enforce its judgments if the other branches of government refuse to comply, its primacy on legal questions has been recognized since Marbury v. Madison was decided in 1803. The Constitution is silent on this power of judicial review, which the Court proclaimed on its own initiative when Justice John Marshall wrote: "It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is."